In applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.
The Board of Immigration Appeals (BIA or Board) has held that, in applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings. In the instant case, the respondent was convicted of battery against a spouse, and the issue was whether that conviction amounted to a crime of violence. Matter of Milian-Dubon, 25 I. & N. Dec. 197 (B.I.A. Feb. 19, 2010).
The respondent, a native and citizen of Guatemala, is a lawful permanent resident of the U.S. In 2004, he pled guilty to battery of his spouse in violation of Cal. Penal Code § 243(e)(1). The Department of Homeland Security (DHS) initiated removal proceedings, contending that the respondent’s conviction rendered him removable under INA § 237(a)(2)(E)(i) [8 USCA § 1227(a)(2)(E)(i)] for having committed a crime of domestic violence. The immigration judge (IJ), finding that the record of conviction consisted only of the criminal complaint and guilty plea, concluded that the information in the record did not clearly establish that the respondent had been convicted of a crime of domestic violence and terminated the proceedings. DHS appealed the IJ’s decision, arguing that the IJ erred by not including the police report in the record of conviction.
In a decision written by Board Member Garry Malphrus, in which Board Members Edward Grant and Neil P. Miller joined, the Board began its analysis by looking at the language of the relevant statutes. It found first that the generic statute holds that a crime of domestic violence is a crime of violence against, among others, a current or former spouse. Further, the generic definition of crime of violence includes, among other things, the use, attempted use, or threatened use of physical force against another person. Turning to the California statutes, the BIA found that the California crime of domestic violence statute punishes battery against certain persons, in this case, the respondent’s spouse. The BIA looked at the California definition of “battery,” which is any willful and unlawful use of force or violence upon the person of another, and determined that it did not require a force capable of hurting or causing injury nor did it require violence in the usual sense of the term. Thus, the Board opined, the respondent’s crime was not categorically a crime of violence or, by extension, a crime of domestic violence. The Board thus turned to the modified categorical approach outlined by the U.S. Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990).
Under the modified categorical approach as applied in the U.S. Court of Appeal for the Ninth Circuit, the jurisdiction in which the respondent’s case is being litigated, only when the particular elements of the crime are broader than the generic crime can the modified categorical approach be used. Further, if the crime of conviction is missing an element of the generic crime, the approach may not be used. The Board opined that battery is an element of the crime that the respondent was convicted of and, thus, the crime of domestic violence is not missing an element of the general crime. The Board concluded that it was therefore free to use the modified categorical approach in the instant matter.
Applying the approach, the Board stated that it “may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” In the instant matter, the relevant conviction documents included the criminal complaint and the respondent’s signed guilty plea, which reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. The Board stated that, while a police report, standing alone, is not part of the record of conviction,
the fact that the respondent incorporated the police report into the guilty plea made it an “explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent].”’
The Board rejected the respondent’s argument that the police report was not admitted into the record and thus should not be considered. The Board opined that, because the plea agreement incorporates the police report, it is indeed considered part of the record. The IJ should have considered the information in the police report, the Board concluded, and remanded that matter to the IJ for further findings consistent with the Board’s opinion.
John Richard Smith, San Diego, California, represented the respondent. Megan Berry Oshiro, Assistant Chief Counsel, represented DHS.
